Introduction This two-part information paper outlines the complexities of making Constitutional reform in Australia. It comes on the back of the Turnbull Government’s goal to seek Constitutional recognition for Indigenous Australians before May 2017. Part 1 provides an overview on the referendum process, examines the history of Constitutional reform in Australia, and outlines what elements successful past-referendums have shared. Part 2 looks at the current Indigenous-led Recognise campaign in Australia. This seeks to amend sections 25 and 51(26) of the Constitution which allow for adverse racial discrimination in law. In doing so, the paper considers the op- tions of a treaty as opposed to, or complementary with, holding a referendum. Part 1: The Australian Constitution The Australian Constitution is the law under which the government of the Commonwealth of Australia operates. It evolved through a series of Constitutional conventions throughout the 1890s and was passed by the British Parliament as part of the Commonwealth of Australia Constitution Act 1900. It took effect on 1 January 1901. Though the Constitution was techni- cally an act of the British Parliament, British legislative influence was officially removed when the Australia Act passed in 1986. The Constitution outlines the separation of powers into three branches: legisla- tive, executive and judicial – those who make laws, those who put the laws into operation, and those who interpret the law. The Constitution also establishes the framework for the relationship between Federal Parliament and the states. Section 128 and section 51 of the Constitution specifies that it can only be altered through a referendum. This means it can only be amended with the approval of Australian electors. The Australian Constitution is not the only legislation to have constitutional significance in Australia: The Statute of Westminster (which sets the basis for the relationship between the Commonwealth and the Crown) and the Australia Act 1986 (which removed the remaining possibilities for the UK to pass legislation in Australia) also play a substantial role in legislation. 1 However, many believe that the process of changing the Constitution has been somewhat circumvented through rulings of the court, such as in relation to Commonwealth-State powers. In order for a proposed law to reach referendum stage, it must be passed in both Houses of Parliament. It must pass with an absolute majority in both houses, meaning it must receive one more than half the votes of the total num- ber of members of the house, whether they are present or not. Since the Constitution was established, there have been 44 attempts on 19 different occasions (it is common to have multiple questions on the ballot) to change the Constitution. Of these 44 attempts, only eight have been success- ful. The last successful referendum was in 1977, and only four referendums have successfully been voted in over the past 50 years. How does a referendum pass the public? To pass a referendum, the “yes” vote must receive a majority of votes – which is one more than half the total number (i.e. 50 per cent plus one.) To use a referendum to change the Constitution, the referendum must win a double majority requiring: • A national majority of voters must vote “yes”. This means that the combined “yes” vote across all Australian states and territories must be 50 per cent plus at least one. • When state votes are counted, a majority (50 per cent plus one, therefore four) of the states must have voted “yes”. This clause was intended to protect the smaller states’ interests. Only the six states are included in this majority, the two territories are excluded. Many attribute the double majority rule as the reason it is so difficult to pass referendums. There have been occasions where a clear majority has passed at the national voting level (such as the Aviation and the Simultaneous elections referendums), but failed to get a total of four “yes” state votes. The appendix provides a full list of referendums in Australia and their outcomes. 2 What makes a successful referendum? Australia’s most successful referendum to-date was in 1967 to give Federal Parliament the power to make laws in relation to Aboriginal and Torres Strait Islander people and to remove the prohibition against including them in pop- ulation counts in the Commonwealth or a state. The national vote received 90.77 per cent and all states carried the vote. Contrasting the success of this referendum to less successful endeavours pro- vides some theories on what makes a successful referendum. For example, the “no” vote in the 1999 referendum proposing Australia become a republic was 54.87 per cent and the insertion of a new preamble in the Constitution was 60.7 per cent. To achieve a successful outcome, the Australian Human Rights Commission puts forward three strategies: Bipartisan support Support and unity by the major political parties has been a key factor in the success of referendums. In 1967 a “no” campaign was never put forward to the Australian people. Additionally, there were years of united political messag- ing, which greatly contributed to such a successful outcome. Conversely, po- litical party opinions diverged greatly in 1999 – particularly over the proposed new wording. Popular ownership When there is comprehensive debate and opportunities for public involvement resulting in the Australian people feeling they personally own the issue and what is at stake, and they are willing to champion the proposal, there is a much greater likelihood a referendum will pass. It is important that the refer- endum is not perceived as owned either by politicians or the elite, but by the nation as a whole. Popular education If voters understand the issues being discussed and proposed, the chances of getting their support for a “yes” vote is much higher. A successful referendum should have a robust education campaign planned that highlights the need for the reform. For example, the Yes/No booklet became the main source of information dur- ing the formal campaign in 1999. The information provided in the booklet was drafted by politicians who either supported or opposed the amendments. 3 As a consequence, the booklet presented information to the public as polar- ised and adversarial, rather than dispassionate and factual and did not provide balanced and credible information for a successful referendum. Part 2: On the referendum agenda – Indigenous acknowledgement What is the Recognise campaign? The Constitution was drafted at a very different time in Australia’s history when Australia was considered a land that belonged to no one before European settlement and when Aboriginal and Torres Strait Islander peoples were con- sidered a dying race, not worthy of citizenship or humanity. Because of this, Aboriginal and Torres Strait Islander people were not involved in the discussions surrounding the creation of the new nation or its Constitution. It was not until the 1967 referendum that saw a formal change when over 90 per cent of Australian voters agreed to amend the Constitution to give the Federal Parliament power to make laws in relation to Aboriginal and Torres Strait Islander people, and to allow them to be included in the census. However, the referendum did not recognise Aboriginal and Torres Strait Islander people as first peoples or specify the conditions under which parliament could make such laws. The Recognise campaign is a movement that seeks to redress this by rec- ognising Aboriginal and Torres Strait Islander peoples in the Constitution and tackle racial discrimination. At the heart of the debate is changing section 51, paragraph 26, which allows parliament to “make special laws” for “the people of any race”. Cape York Institute Constitutional Reform Research Fellow, Shireen Morris has noted that Aboriginal and Torres Strait Islander people have no presumption of equality before the law in Australia. In fact, they have the opposite – sections 25 and 51(26) (Race Power) explicitly allow for adverse racial discrimination in law. “Today, race-based laws allowed by the Constitution’s Race Power together with an absence of general protection from adverse discrimination, means that Aboriginal people still do not enjoy equality before the law, nor equality in the substantive or practical sense.” – Shireen Morris 4 What outcomes are the Recognise campaign looking to achieve? The Recognise campaign seeks to amend sections 25 and section 51(26) to specify that the “special laws” parliament can make on the basis of race must be for the benefit of the race they apply to. The Recognise campaign states that the amendments would: • Address the sections of the Constitution, including section 25 and section 51(26), that are based on the outdated notion of race, including a Constitutional prohibition on racial discrimination; • Formally acknowledge Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia; • Provide an Aboriginal and Torres Strait Islander body to advise Parliament about matters affecting Indigenous peoples. Speaking on the importance of outcomes from the proposed Constitution changes, Federal Shadow Minister for Human Services, Linda Burney said, “We are the only first world nation with a colonial story that doesn’t acknowl- edge its people’s within the Constitution. There is absolutely no downside. It is a great act of truth-telling. “The Federal Government can’t remove the Race Power clause without re- placing it with something, otherwise it will not have the capacity to ever change the native title act. The idea that there is a clause within the Constitution that gives government the capacity to make laws about particular groups of people is fine, except it has made laws about particular groups of people that have been detrimental. “The clause needs to say that government has a responsibility to make laws that are advantageous – or something along those lines – to particular groups of people.